AYESHA A. MALIK, J. -- Through this Petition, the Petitioner has challenged the acts of Respondent No, 4, Abdalian Cooperatives Housing Society Limited, which has disobeyed order dated 19.4.2012 issued by Respondent No, 2, Registrar Cooperatives and order dated 7.5.2014 issued by Respondent No, 3, Deputy District Officer Cooperatives/Circle Registrar, Lahore. The Petitioner prays that as per the orders of Respondents No, 2. and 3, Byelaw No, 56-E of the Byelaws may be amended by the Respondent Society. Today CM No, 2/3472/2015 for placing on record certain documents is also fixed which is allowed.
2. The Petitioner is a resident of the Respondent No, 4 Society. As a Non-Abdalian owner of property, several Non-Abdalians owners challenged the Byelaws of the Society before Respondent No, 2 on the ground that even though they owned plots in the Respondent Society they were not considered "members of the Society". Consequently they did not have the right to vote or be elected in the Managing Committee ("MC") of the Society. Respondent No, 2 heard the matter and directed that a Special General Meeting ("SGM") be held on the issue within 60 days. Being unsuccessful the matter was again challenged before Respondent No, 3 who has also directed that SGM be held at the earliest to make amendments in the Byelaws of the Society especially in Byelaw No, 56-E to grant right of vote and right of election to the Non-Abdalian owners. A meeting was called for 3.5.2015 to amend Byelaw No, 56-E which Byelaw was not amended. However, as per Notification dated 25.11,2017 issued by Respondent No, 3, certain additions and deletions were made to the.
Byelaws including Byelaw No, 23(i). Hence this Petition.
3. The grievance of the Petitioner is that she owns plot No, 138-B in the Society, however being a Non-Abdalian owner she is not given membership to the Society nor can she vote or contest the elections for the MC of the Society. Learned counsel argued that initially Abdalians were allotted plots by the Society but were not permitted to sell their plots to Non-Abdalians. However as the restriction was relaxed through the Byelaws, many Non-Abdalians became owners of property in the Society. Learned counsel stated that currently the Non-Abdalian owners are higher in number than the Abdalians. However notwithstanding the same they are not members of the Society nor are they allowed to vote or contest for the election of the MC of the Society. He argued that a cooperative society is established for the benefit and welfare of the people living in the society.
Since the Petitioner resides in the Society, she is entitled to, be called a member of the Society with permission to vote and the right to contest election for the MC and other committees of the Society. Learned counsel further argued that this matter was placed before Respondents No, 2 and 3 who directed that a SGM be held on the basis of which Byelaw No, 56-E, the relevant Byelaw imposing the restriction be amended. Learned counsel also argued that instead of amending Byelaw No, 56-E, Respondent No, 4 has gone beyond the orders of Respondents No, 2 and 3 and introduced Bye-law No, 23(i) on the basis of which they claim that the orders of Respondents No, 2 and 3 have been complied with. Learned counsel stated that the orders have not been complied with and instead Respondent No, 4 is deliberately attempting to keep Non-Abdalian owners out of the Society and its management. Learned counsel further argued that the Byelaws require that every owner be considered a member of the Society, however to-date the Petitioner has not been issued a certificate of membership and is not considered as member of the Society. Learned counsel places reliance on Mrs. Naila Masood and 2 others v. The Secretary, Food and Cooperation, Government of Sindh and others (1998 CLC 1532), Shaikh Arif-ul-Rehman v. Province of Sindh and others (2008 CLC 579), Feroze Shamsi and 2 others v. Province of Sindh, Ministry of Cooperation, through Secretary Cooperation and 2 others (2008 YLR 2763) and Mst. Haleema Rasheed v.
Registrar Cooperative Housing Society and 32 others (2010 YLR 2497).
4. On behalf of Respondents No, 1, 2 and 3, learned Law Officer argued that the Society was required to comply with the orders of Respondents No, 2 and 3. Several directions have been given in this regard including the direction that they should adopt the model Byelaws, however no intimation in this regard was ever provided.
5. On behalf of Respondent No, 4 Society report and parawise comments have been filed. Learned counsel for the Respondent argued that the orders of Respondents No, 2 and 3 dated 19.4.2012 and 7.5.2014 have been duly complied with vide Notification dated 25.11.2017 which shows that certain changes were made in the Byelaws. He, argued that in terms of Byelaw No, 23(i) the grievance of the Petitioner alongwith other Non-Abdalian owners has been redressed as the MC consists of 11 members, out of which three are Non-Abdalian owners from Blocks A, B and C. The Non-Abdalian owners are to be elected from amongst Non Abdalian owners, hence the petitioner can vote and contest the election and attend the Annual General Meeting ("AGM") as and when convened.
Hence the Petitioner has no grievance now.
6. The basic issue before the Court is whether Respondent No, 4 has duly complied with the repeated directions issued by Respondents No, 2 and 3 to amend Byelaw No, 56-E of the Byelaws of the Society. Initially Byelaw No, 56-E provided that no member shall sell any plot allotted to him/her to any person unless he is a member of the Society or is eligible to, become the member of the Society in accordance with the Byelaws No, 3(i)(ii)(iii) and (iv) and is admitted by the Society as member in accordance with the Byelaws. Subsequently Byelaw No, 56-E was amended in the AGM on 26.2.2006 stating that if any member/owner intends to dispose of/sell the plot to any NonAbdalians, he/she (Non-Abdalian) may be admitted as a Non-Abdalian member subject to the approval of the MC. Further that a Non-Abdalian member shall not be eligible to be a member of the MC of the Society or become office bearer of any other committee connected with the affairs of the Society. Consequently, Non-Abdalians, being aggrieved by the Byelaws, approached Respondent No, 2 who heard the parties and passed order dated 19.4.2012 directing therein that Byelaw No, 56-E was against the spirit of the Cooperative Societies Act, 1925 ("Act") as well as its Rules. Therefore, the MC of the Society was to hold a SGM within 60 days to submit its recommendations on amending Byelaw No, 56-E. However, no action was taken and the matter was again agitated before Respondent No, 3 who heard the matter in detail and concluded that Byelaw No, 56-E was against the spirit of the Act as well as its Rules and that all members should be given the right to vote and right of election. The MC was therefore again directed to comply with the order dated 19.4.2012 and a SGM be called to amend Byelaw No, 56-E to grant the right of vote and the right of election to Non-Abdalian members. Subsequently several reminders were issued to the Respondent Society on 20.2.2014, 10.3.2015 and 8.4.2015, however Byelaw No, 56E was not amended. Instead a meeting took place on 10.4.2016 in which the Society opted not to adopt the model Byelaws and formed a committee to propose amendments in the Byelaws. During the pendency of the writ petition, several opportunities were given to the counsel for Respondent No, 4 to produce the proposed amendments in the Byelaws, ,however nothing was forthcoming until 13.12.2017 on which date counsel for. Respondent No, 4 placed on record Notification dated 25.11.2017 whereby certain additions and deletions were made in the Byelaws.
7. In terms of Notification dated 25.11.2017 amendments were made in Byelaw Nos, 2, 3 and 23.
Byelaw No, 3 provides for the criteria to become a member of the Society and Byelaw No, 3(v) provides that a person who has acquired rights in property in the Society through inheritance/transfer etc. is entitled to become a member of the Society. As per the record no change has been made to Byelaw No, 3(v). Furthermore no change has also been made to Byelaw No, 56-E, meaning thereby that Non-Abdalians cannot be elected to the MC of the Society. Instead Respondent No, 4 has amended Byelaw No, 23 of the Byelaws. The stated Byelaw deals with the MC of the Society. In terms of the original Byelaw No, 23, a Non-Abdalian could not become a member of the MC. However, as per the amendment made to Byelaw No, 23(i) three Non-Abdalian owners each from Blocks A, B and C can become members of the MC. These owners of plots in Blocks A, B and C are still not considered members of the Society and they are to be elected by other Non- Abdalian owners of the Society. Therefore as per the amendment, even though they have been given representation in the MC, they still do not enjoy the rights of. a member of the Society. In this way, the Respondent Society has avoided to comply with the directions given by Respondents No, 2 and 3 to amend Byelaw No, 56-E. They have also disregarded the directions of Respondent No, 3, dated 7.5.2014 wherein it is clearly stated that Non-Abdalians must be granted the right to vote and the right to election to the MC. Learned counsel for Respondent No, 4 has defended the position of the Society by stating that the amendment made to Byelaw No, 23(i) ensures representation of Non-Abdalian owners in the MC thereby giving them representation and the right to election to the MC. However, on perusal of the record, I am of the opinion that amendment to Byelaw No 23(i) does not satisfy the directions and Orders of Respondents No, 2 and 3. The basic grievance of the Petitioner alongwith others was that being Non-Abdalian owners of property in the Society they are not treated as members of the Society, thereby denying them all the rights that a member of the Society was entitled to under the Byelaws. In this regard, Byelaw No, 3(v) clearly, provides that a person who is owner of the property through inheritance/transfers etc. is entitled to become a member of the Society. Therefore there is no legal justification for denying Non-Abdalian owners of property membership of the Society as it is provided in the Byelaws itself. This act of Respondent No, 4 is not only contrary to its Byelaws but also against the spirit of the Act and its Rules.
8. So far as Byelaw No, 23(i) is concerned, it does not comply with the directions of Respondents No, 2 and 3 given vide orders dated 19.4.2012 and 7.5.2014. The amended Byelaw aims to create a category of voters being Non-Abdalian owners who are given representation in the MC in their capacity as Non-Abdalian owners and are entitled to vote only for Non-Abdalian owners. Hence it has not given the Non-Abdalian owners the status of member of the Society nor does it give them the right to participate in the affairs of the Society as directed by Respondents No, 2 and 3.
Respondent No, 4 was directed to call a SGM to amend Byelaw No, 56-E, which it has failed to do. It was also directed to give the Non-Abdalian owners the right to vote and election to the MC or any other committee of the Society. It is noted that the basic objection placed before Respondents No, 2 and 3 was that Non-Abdalian owners being residents of the Society were entitled to become members and were also entitled to enjoy all rights that the Abdalian members were entitled to. This grievance of the Non-Abdalian owners was duly considered and orders were given in their favour requiring the Society to give them the right to vote and the right to election. Instead Respondent No, 4 has tried to segregate the Non-Abdalian owners from any positive role in the Society and has created a NonAbdalian category on the basis of which it claims that the directions of Respondents No, 2 and 3 have been complied with. I am of the opinion that the directions have not been complied with despite repeated reminders from Respondents No, 1, 2 and 3. Furthermore without amending Byelaw No, 56-E, the insertion of Byelaw No, 23(i) has created a contradiction with respect to Non-Abdalians becoming members of the MC. Byelaw No, 56-E prohibits NonAbdalians to become members of the MC whereas Byelaw No, 23(i) permits them to become members of the MC. Respondent No, 4 has deliberately avoided amending Byelaw No, 56-E which act cannot be permitted. Furthermore learned counsel for Respondent No, 4 agreed that there was a contradiction, however he stated that under such circumstances the amendments should be given priority over the earlier Byelaws for the purposes of harmonizing the reading of the Byelaws.
There appears to be no logic in this explanation. The denial of membership is a gross violation of the Byelaws, given that Byelaw No, 3(v) specifically permits the same. Hence Respondent No, 4 cannot deny an owner of property from becoming a member of the Society. Therefore the Petitioner being a Non Abdalian owner is entitled to become member of Respondent No, 4 Society who is directed to issue certificate of membership to the Petitioner forthwith without any delay.
9. In view of the aforesaid, this writ petition is allowed and the amendment made in Byelaw No, 23(i) is struck down. Respondent No, 4 is directed to convene a SGM within thirty days and all Non- Abdalian owners being members of the Society may attend the meeting. The amendment to Byelaw No, 56-E shall be duly considered as well as the amendment to any other Byelaws on the basis of which Non-Abdalian owners are aggrieved. An agenda to this extent shall be issued by Respondent No, 4 and Respondent No, 2 is directed to ensure compliance of the orders of this Court in letter and spirit and submit its report to the Deputy Registrar (Judicial) of this Court expeditiously.